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2024 DIGILAW 1771 (ALL)

Ram Ratan Suman v. State of U. P.

2024-07-30

AJIT KUMAR

body2024
JUDGMENT : Hon'ble Ajit Kumar, J.- Heard Sri P.K.Mishra, learned counsel for the petitioner and Sri B.P.Singh learned counsel for the respondents. 2. The petitioner who is working with respondent Corporation and currently posted as Accounts Officer in the office of Regional Chief Accounts Officer, Ghaziabad, has been placed under suspension vide order dated 08th July, 2024 passed by Managing Director in contemplation of enquiry. 3. Two fold arguments has been advanced by Mr. Mishra, learned counsel for the petitioner: (a). Charges are vague and very casual qua discharge of official duty by the petitioner, inasmuch as one Manish Kumar Gupta, the Office Assistant was assigned the duty relating to the work and information of tenders and so petitioner cannot be saddled with any liability as such as have been discussed in the order impugned; and (b) There is no objective consideration which may have weighed mind of the disciplinary authority in arriving at decision to place the petitioner under suspension. 4. Mr. Mishra has relied upon the judgment of this Court in the matter of Dr. Arvind Kumar Ram v. State of U.P. and others, 2007(8) ADJ 659. He has placed before the Court paragraph 15,16 and 17 of the judgment. ''15. The first proviso to rule 4(1) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, provides that an employee can be suspended, only, if the allegations against him are serious and the appointing authority is satisfied that if it is proved then major penalty is liable to be imposed on the employee. It is squarely covered by the principle laid down in S.Sundaram Pillai (supra) in paragraph 42(3) that ''it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself.'' 16. Rule 4(1) and the first proviso, in our opinion, should be read strictly and the appointing authority should exercise its discretion, after calling for the record and after applying its mind. Otherwise the exercise of discretion would lead to arbitrariness and would result in injustice and unfairness to the Government servant. The intention of the rule being that suspension should be an exception, it must be followed strictly. Otherwise the exercise of discretion would lead to arbitrariness and would result in injustice and unfairness to the Government servant. The intention of the rule being that suspension should be an exception, it must be followed strictly. The first proviso being a restriction on exercise of power of the appointing authority, it requires the subordinate authority to make recommendation on a fair and just consideration of material on record. Even if the subordinate authority fails to discharge its duty it does not absolve the appointing authority from discharging its obligation by calling for the records and consider objectively if the allegations were so serious that it would result in imposition of major penalty, unless allegations were such that there could be no doubt about the applicability of the proviso. Even in such cases, the rule of fair play must be read as requiring the appointing authority to record his own reasons. Otherwise it would be surrendering his discretion to the recommendation of the subordinate authority. Such action would be arbitrary and contrary to the letter and spirit of the rule. 17. We may now examine whether the exercise of discretion to suspend the petitioner was on objective consideration. When a rule or law requires an order to be passed on objective consideration, it necessarily requires to examine the material on record. The material on record does not mean the complaint or allegations only as observed by the Full Bench in Jai Singh Dixit's case or recommendation of the subordinate authority. The appointing authority must be satisfied from the material on record or on further investigation, that the allegations are so serious that it would result in major punishment. The reason, so arrived at, must be on record to satisfy the test of being on objective consideration. '' 5. Per contra, it is argued by learned counsel for the respondent Corporation that suspension itself is no punishment as decision to place an employee under suspension is to avoid any of the kind of manipulation or misplacement of records at the end of delinquent employee and to ensure that departmental witnesses are not unduly influenced. He submits that petitioner would continue to receive subsistence allowance which will get increased with the passage of time as per rules and he would only be facing enquiry. 6. He submits that petitioner would continue to receive subsistence allowance which will get increased with the passage of time as per rules and he would only be facing enquiry. 6. The second submission advanced by learned counsel for the Corporation is that petitioner was one of the members of the Committee, especially constituted to deal with the tenders that are floated by Corporation and petitioner having detained the files of tenders virtually caused inordinate delay in disposal of tender matters. He submits that this caused not only damaged to the image of the Corporation but holding of files unnecessarily is indicative of in an act and conduct which may be termed as misconduct on the part of the petitioner. 7. It is submitted that petitioner being member of the committee had to shoulder the responsibility to ensure that files movement is made fast, inasmuch as, moment register is also to be maintained. It is further argued by learned counsel for the respondent that now since in petitioner's case of disciplinary proceedings charge-sheet has been prepared and approved by the competent authority on 28th July, 2024, there should be no occasion to hold petitioner's suspension to be bad on account of inordinate delay at the end of respondent in concluding the departmental proceedings. He submits that even the department while concluding the departmental enquiry and while concluding disciplinary proceedings giving due partition to the petitioner. He has further submitted before the Court that in the matter of suspension, the Court would be virtually not interfering as ground of misconduct is sufficient enough to impose major penalty. 8. Having heard learned counsel for the respective parties, having the perused the records, pleadings raised in the present petition, the order impugned and the judgment cited before this Court and the charge-sheet placed before the Court, I find that the sole issue that falls for consideration before this Court is, as to whether in the given facts and circumstances of the case, this Court in its exercise of extra ordinary power under Article 226 of the Constitution should interfere with the administrative orders of suspension passed by the competent authority in the matter. An employee is normally placed under suspension when the departmental enquiry is set into motion. An employee is normally placed under suspension when the departmental enquiry is set into motion. The foremost task for the disciplinary authority is to ensure that official records are made secured and safe and in that process also departmental witnesses, if any, may not get influenced by a delinquent employee. The principle behind the order placing an employee under suspension is just to keep his/her hand away from the official records otherwise such an employee if remains a full time duty, he has carry access to records and it is equally easy for to him to influence a department witness and thereby to win over him. 9. The argument that has been advanced that charge levelled against the petitioner is vague and that it would not result major penalty, in my considered view is misplaced one. The office record is to be maintained by an employee having custody, with utmost care and honesty and has to remain vigilant about the movement of files, more especially, when it relates to performance of public duty in the sense that tenders are to be floated inviting applications from public. Petitioner was a member of the committee constituted especially for such purpose, so it was onerous duty cast upon the petitioner to ensure that files are not only placed in a secured and safe manner, but their moment also does not get restricted unnecessarily. The charge is that petitioner did not prepare any moment register of the files while he was a important constituent member of the committee that dealt with the matter of tender. Here in this case, minister of the department concerned also came to notice and thus directed the authority of the Corporation to take immediate action in the matter. 10. The submission advanced by learned counsel for the petitioner that one Manish Kumar Gupta was having instructions to look into all the work related to tender and also distribution of information regarding that, and therefore, petitioner would not be held responsible, is also liable to be rejected, the reason being that petitioner was not a simple clerk but he was constituent member of the committee that was constituted for the purposes of dealing tender matters. Clerical job done by Mr. Clerical job done by Mr. Manish Kumar Gupta was one of the aspects of the matter, but petitioner being a member of the committee had more important task to ensure that tender files are not held up for any justifiable reason. Mr. Manish Kumar Gupta in any manner responsible for same, then it would also lead to an inference that petitioner failed to exercise his supervisory and superintending authority over said Manish Kumar Gupta who was only a clerk in the department. 11. In the case of Union of India and another v. Ashok Kumar Aggarwal, (2013) 16 SCC 147, the Supreme Court summarize the principle for placing an employee under suspension vide paragraph 22 thus: ''In view of the above, the law on the issue can be summarized to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc.'' 12. In the same judgment, discussing the scope of interference by the Court with the order of suspension, Supreme Court referred to a large number of judgments vide paragraph 26 and held thus: ''The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State of M.P. v. Sardul Singh, (1970) 1 SCC 108 ; P.V. Srinivasa Sastry v. Comptroller & Auditor General of India, (1993) 1 SCC 419 ; Director General, ESI and another v. T. Abdul Razak, AIR 1996 SC 2292 ; Kusheshwar Dubey v. M/s. Bharat Cooking Coal Ltd. and others, AIR 1988 SC 2118 ; Delhi Cloth General Mills v. Kushan Bhan, AIR 1960 SC 806 ; U.P. Rajya Krishi Utpadan Mandi Parishad and others v. Sanjeev Rajan, (1993) Supp. (3) SCC 483; State of Rajasthan v. B.K. Meena and others, (1996) 6 SCC 417 ; Secretary to Government, Prohibition and Excise Department v. L. Srinivasan, (1996) 3 SCC 157 ; and Allahabad Bank and another v. Deepak Kumar Bhola, (1997) 4 SCC 1 , wherein it has been observed that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the Court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the Court may not interfere. In case the Court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the Court may issue directions. The Court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial cannot be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the Court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question.'' 13. Laying down emphasis upon the object behind placing a delinquent employee under suspension, the Court held that main purpose is to complete disciplinary proceeding unhindered and suspension was termed only an interim measure to avoid delinquent employee getting access to the official documents and papers so as to take undue advantage in the matter of enquiry. vide paragraph 27, the Court held thus: ''Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the Court may find out as which version is true when there are claims and counter claims on factual issues. The Court cannot act as if it an appellate forum de hors the powers of judicial review.'' 14. From the perusal of the charge-sheet that been placed before the Court, the article of charges are two in number dealing with more details in respect of tender and records files and lethargical approach in task needed to be accomplished and how duty was being performed, are all subject-matters of enquiry and during enquiry petitioner will have an opportunity to put up his defence. In the matter of suspension, this Court exercising its power under Article 226 of the Constitution will not go into minute details of facts. The enquiry report may exonerate petitioners or may indict him and it would be in the discretion of the disciplinary authority to decide the nature of penalty may be major. So, it is more appropriate for petitioner to submit reply to the charge-sheet and face enquiry. 15. Coming to the authority cited by Mr. Mishra, in the matter of Arvind Kumar Ram (supra), I find that the Court was dealing primarily with the aspect of the matter as to whether petitioner would be held to be responsible as per charges made so as to hold him liable for major penalty. 16. In the present case situation is yet to arrive simply for reason being that allegations made in the suspension order are not in that detail as are in the charge-sheet and in the case of Dr. 16. In the present case situation is yet to arrive simply for reason being that allegations made in the suspension order are not in that detail as are in the charge-sheet and in the case of Dr. Arvind Kumar Ram, no charge-sheet had yet been framed and the Court was simply dealing with the suspension order. 17. In my considered view, therefore, the judgment cited by counsel for the petitioner Mr. Mishra, is distinguishable on facts, thus, I refuse to grant indulgence in this matter. 18. At this stage learned counsel for the petitioner submits that he may be given opportunty to submit report of the departmental enquiry and the consequential disciplinary proceedings may be directed to be concluded within specified period of time. 19. In view of above, I dispose of this petition with following directions: (i). petitioner shall be submitting his reply to the charge-sheet within a period of four weeks from today and if petitioner wants copy of the document, he will apply for the same within a period of two weeks from today before the enquiry officer who shall provide documents within two weeks and if the documents are confidential, petitioner may be asked to peruse such documents during enquiry. (ii). Soonafter reply is submitted by the petitioner, oral enquiry will be held and concluded with due participation of the petitioner and the enquiry report will be submitted, within one month. (iii) If the enquiry report is submitted, the disciplinary authority will proceed to conclude the proceedings in accordance with law and the procedure prescribed for, within a further period of one month. It is also directed that petitioner shall be paid subsistence allowance continuously so long as he is kept under suspension. It is further directed that if the petitioner does not cooperate in the departmental enquiry and disciplinary proceeding, the disciplinary proceeding shall be brought to its logical end within as the period prescribed as above. 20. Non payment of subsistence allowance and inordinate delay in concluding the disciplinary proceedings would give right to petitioner to apply for setting aside the suspension order before this Court afresh.